Negligence—Defendant general contractor employing
independent contractor to make particular repair on plaintiff's building—No
contract as between defendant and plaintiff to effect repair—Building destroyed
by fire because of independent contractor's negligence—Extent of duty owed to
plaintiff by defendant.

The defendant contractor was engaged in making certain repairs
to a building owned by the plaintiff and instructed an independent contractor
to solder a hole in the gutter. While the servant of the independent contractor
was proceeding to effect this repair, a fire was caused by the servant's
negligent operation of a lighted blowtorch and resulted in the destruction of
the building. The plaintiff's claim was, initially, framed as one for breach of
contract by the defendant, but no contract by the defendant with the plaintiff
to repair the gutter was proved, and the case proceeded to trial solely as a
claim that the defendant was vicariously liable for the negligence of the
workman in doing that work. The trial judge dealt with the case as being one
which involved the issue of liability of the defendant for the negligence of an
independent contractor hired by it. He decided that the work done by the
servant was not, by its nature, inherently dangerous and consequently that the
case was not one in which liability would attach to the defendant in respect of
the negligence of the servant of its independent contractor. The Court of
Appeal, by a majority, allowed an appeal from this judgment and the defendant
then brought an appeal to this Court.

Held: The appeal should be allowed and the judgment of
the trial judge restored.

The issue was as to the extent of the duty owed to a claimant
by a person who contracts with an independent contractor to do work, not for
himself, but for the claimant, at the claimant's request, if the claimant's own
property is then damaged because of negligence on the part of the independent
contractor who is working on it. The plaintiff had failed to prove any contract
between the defendant and itself whereby the defendant undertook to effect the
repair of the gutter. The only connection of the defendant with the matter was
the actual hiring of the services of the independent contractor and providing
him with the staging from which to do the work. In these circumstances, the
duty owed by the defendant to the plaintiff was no more than to exercise
reasonable care in the selection of a competent independent contractor to
perform the work. There was no suggestion in the evidence that the choice made
by the defendant was an improper one and, therefore, there was no evidence of a
breach of that duty.

[Page 341]

APPEAL from a judgment of the
Supreme Court of Nova Scotia, in banco1,
allowing by a majority an appeal from a judgment of Parker J. Appeal
allowed.

Martland J.:—This
case involves a claim for damages sustained by the respondent as a result of
the destruction by fire, on November 12, 1959, of the court-house building
owned by it in the City of Sydney. For some days prior to that date, and on
that day, employees of the appellant had been engaged in making repairs to the
exterior of the building. On that day James Garland, a servant of George
Garland who was the owner of a small roofing and sheet metal business in
Sydney, went to the top of a scaffolding on the south side of the building,
which had been erected by the appellant, for the purpose of repairing a hole in
the gutter; this hole was about the size of a fifty-cent piece. He took with
him a blowtorch, a soldering iron and other necessary materials. He lit the
blowtorch, placed it in the gutter with the flame pointing along the length of
the gutter and put the soldering iron on to heat. His reason for placing the
torch in the gutter was that there was a wind blowing from the south and he
thought that if he left it on the scaffolding it would be blown out. The gutter
was made of copper about one-sixteenth of an inch in thickness; it was about
ten inches deep; its width at the top was about nine inches and at the bottom
about seven inches. The base of the blowtorch was round; it was about six
inches in diameter and eight inches in height; when placed in the gutter it
went right to the bottom. In the position in which Garland was working nothing
inflammable was exposed; the walls of the building were brick; the shingles on
the roof were not wood; copper flashing came down from the roof and lapped over
the metal of the gutter. The flashing and the gutter were nailed to a wooden
fascia board but no part of this board was visible.

[Page 342]

The learned trial judge found that the fire was caused by
the heat from the blowtorch passing through the metal of the flashing and the
gutter and igniting the fascia board. He found that the fire was caused by the
negligence of James Garland and this finding was not questioned before us.

The circumstances which led to James Garland being present
at the building on that day were as follows: An employee of the appellant, who
had been engaged in replacing copper moulding on the building, had noticed the
hole in the gutter. He brought this to the attention of a Mr. Carmichael, the
County Clerk, who had previously requested the employees of the appellant to
advise him as to the condition of the building. Subsequent to Carmichael's
receiving this advice, a Mr. MacInnis, the appellant's foreman, attended at the
shop of George Garland.

The only evidence as to the arrangement which was made for
the repair of the gutter to be done by James Garland is that which James
Garland gave at the trial. Neither Carmichael nor MacInnis gave evidence. James
Garland testified that he overheard a conversation between his father, George
Garland, and MacInnis, in which the latter wished to have James Garland go up
and solder the gutter. MacInnis told James Garland where the hole was which he
was to repair and James Garland went to examine it. The staging was not high
enough for him to reach the hole and, in consequence, the appellant's employees
increased the height of the staging from which James Garland worked. James
Garland went to do the work upon the instructions of his father.

The respondent commenced action against the appellant,
claiming in contract, alleging that:

On or about the 1st day of November, A.D. 1959, the
Defendant entered into a contract with the Plaintiff pursuant to which the
Defendant undertook to effect certain repairs to the Court House building
aforesaid and it was a term of the said contract, express or implied, that the
Defendant would use reasonable care and due diligence, and would see that
reasonable care and due diligence was used by others employed by it, in and
about and during the performance of the said work, for the safe performance
thereof and the preservation of the Plaintiff's property.

This was followed by an allegation that on November 12,
1959, the servants or agents of the defendant, while engaged in the performance
of the work included in the contract, negligently set fire to the building.
Particulars of the neg-

[Page 343]

ligence were then given. The appellant, in its statement of
defence, denied that it was under contract to do this work, or that its
servants or agents negligently set fire to the building.

Had the respondent been able to establish the contract which
it pleaded and that the repair of the gutter was included in the work which the
appellant had contracted to perform, the respondent would have been entitled to
succeed against the appellant, irrespective of whether James Garland was a
servant of the appellant or a servant of an independent contractor hired by the
appellant to do that work. By contracting to do the work the appellant would
have been under an obligation to the respondent to do the work itself, or to
ensure that it was done, carefully. In such a case the appellant could not have
evaded its contractual duty by delegating the performance of the work to
someone else.

However, the respondent was apparently unable to prove such
a contract. There was no evidence led to establish its existence and counsel
for the respondent at the trial stated that he was basing his claim solely in
negligence.

The learned trial judge dealt with the case as being one
which involved the issue of liability of the appellant for the negligence of an
independent contractor hired by it. He said:

In my opinion, what the evidence shows is that James Garland
was at all relevant times the servant of his father, George Garland. The legal
relationship between the defendant and George Garland was that of a general
contractor and an independent subcontractor.

He decided that the work done by James Garland was not, by
its nature, inherently dangerous and consequently that the case was not one in
which liability would attach to the appellant in respect of the negligence of
the servant of its independent contractor.

From this decision the respondent (at that time the
appellant) appealed to the Court of Appeal. The case was dealt with in that
Court upon the same basis. MacQuarrie J., who delivered the reasons of the
majority of the Court, said:

With deference, in my opinion, … the matter comes to this,
that it is reasonable to conclude on the whole of the evidence that the work
that was done by George Garland and James Garland in connection with soldering
the hole in the copper gutter, was done by George Garland engaged by Mr.
MacInnis to do work in connection with the Court House

[Page 344]

repairs as an independent contractor working for the
respondent and by James Garland as the servant of George Garland.

He went on to hold, however, that:

In my opinion, considering all the circumstances in the
present case, the respondent ordered the doing of work, which, if done by the
usual method, would create a danger of fire to the appellant's building, and it
thereupon came under a duty either to provide that the dangerous method be not used
or to provide that, if it were used, all necessary precautions against fire be
taken, and it could not escape liability for the non-performance of such duty
by delegating its performance to George Garland.

MacDonald J. dissented and, for the reasons which he stated,
agreed with the conclusion reached by the learned trial judge that "it
cannot be said that such work was by its nature inherently dangerous."

The Court of Appeal permitted the respondent to amend its
pleadings so as to plead, in addition to the allegation of negligence on the
part of the appellant, its servants or agents, which it had previously pleaded,
an additional allegation of negligence on the part of its independent
contractor.

With the greatest respect for the conclusions reached in the
Courts below, I find it difficult to see how the relationship of contractor and
subcontractor could have existed as between the appellant and George Garland,
when there is no evidence of a main contract, as between the appellant and the
respondent, involving any responsibility on the part of the appellant to repair
the gutter. On the evidence in this case it cannot be said that the appellant
contracted with the respondent to do that work and consequently it was under no
duty to the respondent to perform it. It is not possible to infer such a
contract from the conversation between MacInnis and George Garland without any
additional supporting evidence. It must be recalled that the evidence shows
that the hole in the gutter had been disclosed to Carmichael. There is no
evidence to establish what instructions were thereafter given by Carmichael to
MacInnis. I do not see how it is possible to infer that MacInnis undertook, as
a matter of contract with the respondent, that the appellant should undertake
that work merely because later he requested George Garland to have that work
done. Carmichael might have requested that the

[Page 345]

appellant undertake that work as a matter of contract. On
the other hand, he might equally well have requested MacInnis to arrange that
someone should do the work. The respondent failed to prove any contract between
the appellant and itself whereby the appellant undertook to effect the repair
of the hole in the gutter.

The absence of such a contract is of great importance, not
only because the appellant cannot be held liable in contract in respect of the
damage which occurred, but also because it has a very important bearing in
determining the question as to whether the appellant became vicariously
responsible for the negligence of George Garland's employee James Garland. How,
in the absence of such a contract, is the rather scanty evidence given by James
Garland to be construed in determining the legal relationship between the
appellant and George Garland? In my opinion there is no more reason for
construing the conversation between George Garland and MacInnis as leading to
the inference that MacInnis made a contract with George Garland to do the
repair work on behalf of the appellant than there is for construing the
evidence as leading to the inference that MacInnis requested George Garland to
do the work for the respondent. If the appellant was not obligated by contract
to do this work itself, why should it enter into a contract with George Garland
that he do the work in question on behalf of the appellant? If the second of
the above inferences is drawn, then that is an end of the matter, for, in that
case, George Garland was never an independent contractor of the appellant's and
consequently there could be no vicarious liability on its part for the
negligence of George Garland's servant. As the onus rested upon the respondent
to establish the relationship between the appellant and George Garland, I would
think that we are not entitled to adopt the first inference.

But, in any event, even if that inference were to be drawn,
I do not see how it can lead to liability on the part of the appellant, in the
absence of the existence of a main contract between the appellant and the
respondent whereby the appellant undertook to do that work. It is necessary to
define the extent of the duty owed by the appellant to the respondent, on which
the respondent seeks to make the appellant vicariously responsible for the negligence
of

[Page 346]

the servant of an independent contractor. It is, I think, of
the utmost importance to remember that, even adopting the first inference, the
services of the independent contractor were retained by the appellant, not to
perform work which the appellant was itself obligated to perform, but solely to
do work which the respondent required to be done.

This is not the usual case in which the claimant is a person
who has suffered damage as a result of activities being carried on by another
person who has delegated their performance to an independent contractor. Nor
does the respondent claim against the appellant in contract on the basis that
it undertook to perform the work in question for the respondent and delegated
that performance to the independent contractor. This being so, the issue must
be as to the extent of the duty owed to a claimant by a person who contracts
with an independent contractor to do work, not for himself, but for the
claimant, at the claimant's request, if the claimant's own property is then
damaged because of negligence on the part of the independent contractor who is
working on it. The only connection of the appellant with the matter was the
actual hiring of the services of the independent contractor and providing him
with the necessary staging from which to do the work. What duty, in these
circumstances, does the appellant owe to the respondent?

In my opinion, that duty was no more than to exercise
reasonable care in the selection of a competent independent contractor to
perform the work. There is no suggestion in the evidence that the choice made
by the appellant was an improper one and, therefore, there is no evidence of a
breach of that duty.

For the foregoing reasons, in my opinion, the appeal should
be allowed and the judgment of the learned trial judge restored, with costs to
the appellant throughout.